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Vinnakota Veeraju Vs. Kamarsu Balakoteswara Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 142 of 1947
Judge
Reported inAIR1951Mad67; (1951)IMLJ42
ActsDebt Law; Madras Agriculturists Relief Act, 1934 - Sections 8 and 9
AppellantVinnakota Veeraju
RespondentKamarsu Balakoteswara Rao and ors.
Appellant AdvocateP. Satyanarayana Raju, Adv.
Respondent AdvocateA. Sundaram Ayyar, Adv. for ;Suryanarayana, Adv.
Cases Referred and Lakshmi Venkayamma v. Venkatapathi Raju
Excerpt:
.....1934 - whether creditor entitled to retain payments made towards interest in excess of interest payable under provisions of act without adjusting them towards principal - interest outstanding on 01.10.1937 for liabilities contracted before 1932 wiped out under act - creditor not entitled to retain payments made after 01.10.1937 towards interest in excess of interest payable under provisions of act without adjusting them towards principal. - - sundaram aiyar (1940)2mlj550 that appropriations towards interest made before 1-10-1937, one of the most crucial dates fixed by the madras agriculturists belief act, cannot be re-opened and re-adjusted under section 8 (1), madras agriculturists belief act, but that appropriation made after 1-10-1937 can and must be re-opened and re-adjusted,..........expressly says: 'notwithstanding any law, custom, contract or decree of court to the contrary, all debts payable by an agriculturist at the commencement of this act shall be scaled down in accordance with the provisions of this chapter.' mr. satyanarayana raju, for the appellant, conceded that under section 8, the excess interest remaining must be adjusted towards the principal amount remaining. that is undoubtedly so. a bench of this court, consisting of wads-worth and patanjali sastri jj. has held in suryanarayanamurti v. viramma : air1941mad226 and in anantharamakrishna aiyar v. sundaram aiyar : (1940)2mlj550 that appropriations towards interest made before 1-10-1937, one of the most crucial dates fixed by the madras agriculturists belief act, cannot be re-opened and re-adjusted under.....
Judgment:

Panchapakesa Ayyar, J.

1. The points referred by the Bench to this Full Bench for anauthoritative decision are :

1. Whether a creditor is entitled to retain payments made towards interest in excess of the interest palpable tinder the provisions of the Act without adjusting them towards the principal

2. Whether there is any distinction in principle between a debt to which the provisions of 8. 8 apply and that governed by the provisions of Section. 9?

The material facts are these. Respondent 1, for himself and as guardian of his minor sons, executed a mortgage deed, Ex. D-1, dated 10-8-1936, in favour of the appellant for a sum of Es. 5000, with interest at.9 per cent, per annum. The consideration for the mortgage deed was made up of the following items : (1) A sum of Es. 2892 due on a promissory note executed by defendant l on 8-12-1935 in renewal of other promissory notes, the earliest of them being of the year 1929, (2) A sum of Es. 70 taken by him for purchase of stamps, (3) A sum of Es. 1000 paid for discharging the debt due on a promissory note dated 28-12-1935 in favour of one Yellamma Baju and (4) A sum of Es. 1038 paid for discharging the promissory note dated 24-4-1935, executed by respondent l in favour of one Battamma.

2. It will be obvious that some of the liabilities were incurred before 1932 and some others after 1932; hence the second question referred to us, namely, whether there is any distinction in principle between a debt to which the provisions of Section8, Madras Agriculturists Belief Act, applies, and that governed by the provisions of Section9, becomes material. On 1-10-1942, respondent 1 paid an amount of Es. 2790 specifically towards the interest, and this amount was appropriated towards interest due to him by the appellant. Respondent 1 filed C. p. No. 83 of 1945 on 17-10-1945, under Section 19-A (1), Madras Agriculturists Belief (Amending) Act XV [15] ot 1943 for declaring the debt due by him under the mortgage deed Ex. D-1, after scaling down the debt under Sections 8 and 9, Madras Agriculturists Belief Act, and deposited Rs. 2000 in Court as the amount due from him if the debt was scaled down. The appellant had contended in the original petition that though a considerable sum would remain in his hands out of the amount of Rs. 2790 paid by respondent 1 to him on 1-10-1942 specifically towards interest, after deducting the interest due under Section 9, Madras Agriculturists Belief Act (the interest outstanding on 1-10-1937 for liabilities contracted before 1932 being wiped out under the Act), but that (sic) he was entitled to retain that large excess in his hands, under Section 9 (2), as he was not bound to refund any sum paid to him already, and that there should be no re-adjustment of this excess towards the debt remaining payable on scaling down. Respondent 1, of course, contended that Section 9 (2) affected only 'refunds', or returns of amounts remaining over and above the debt as scaled down, and that there was no bar whatever to re-adjust the excess interest remaining out of the sum of Rs. 2790 towards the debt remaining payable on scaling down. The learned Subordinate Judge upheld the contention of respondent 1, rejected the contention of the appellant, and re-adjusted the excess out of the Rs. 2790 towards the debt as scaled down, and held that only Rs. 1191-13-4, together with interest at 6 per cent, per annum from 5-2-1946 till date of payment remained payable under this mortgage, under Sections 8 and 9, Madras Agriculturists Belief Act. This appeal was therefore filed.

3. The relevant provisions of Madras Act IV [4] of 1938 may now be set out :

'8. Debts incurred before 1-10-1932, shall be sealed down in the manner mentioned hereunder, namely: --

1. All interest outstanding on 1-10-1937, in favour of any creditor of an agriculturist whether the same be payable under law, custom or contract or under a decree of Court and whether the debt or other obligation has ripened into a decree or not, shall be deemed to be discharged, and only the principal or such portion thereof as may be outstanding shall be deemed to be the amount repayable by the agriculturist on that date.

2. 'Where an agriculturist has paid to any creditor twice the amount of the principal, whether by way of principal or interest or both, such debt including the principal, shall be deemed to be wholly discharged,

(3) Where the sums repaid by way of principal or interest or both fall short of twice the amount of the principal, such amount only as would make up this shortage, or the principal amount or such portion of the principal amount as is outstanding, whichever is smaller shall be repayable.

(4) Subject to the provisions of Sections 22 to 25, nothing contained in Sub-sections (1), (2) and (3) shall be deemed to require the creditor to refund any sum which has been paid to him, or to increase the liability of a debtor to pay any sum in excess of the amount which would hive been payable by him if this Act had not been passed.

9 (1) Debts incurred on or after 1-10-1932, shall be scaled down in the manner mentioned hereunder, namely : --

Interest shall be calculated up to the commencement of this Act at the rate applicable to the debt under the law, custom, contract or decree of Court under which it arises or at five per cent, per annum simple interest, whichever is less and credit shall be given for all sums paid towards interest, and only such amount as is found outstanding, if any, for interest thus calculated shall be deemed payable together with the principal amount or such portion of it as is due:

Provided that any part of the debt which is found to be a renewal of a prior debt (whether by the same or a different debtor, and whether in favour of the same or different creditor) shall be deemed to be a debt contracted on the date on which such prior debt was incurred and if such debt had been contracted prior to the 1st October 1932, shall be dealt with under the provisions of Section8.

2. Subject to the provisions of Sections 22 to 25, nothing herein contained shall be deemed to require the creditor to refund any sum which has been paid to him or to increase the liability of the debtor to pay any sum in excess of the amount which would have been payable by him if this Act had not been passed.'

Under Section8, all interest outstanding on 1-10-1937 is discharged, and for the subsequent period the interest will have to be paid at the rate provided for by Section12 of the Act, whereas in the case of debts to which Section9 applies, though the entire interest is not wiped out, only interest at the rate of 5 per cent, or less, if the contract rate is less than 5 per cent, is payable from the date of the debt. In either case, therefore, a contingency might arise of the amounts paid towards interest being in excess of the amount payable towards interest under the provisions of the Act, but neither section specifically provides for the manner of adjustment of such excess. There would not be any difficulty in applying the sections if the entire debt is wiped off, in which case, under Sections 8 (4) and 9 (2), the creditor is not bound to refund the same. This had been held by a Bench of this Court in Ganapati Subramania Iyer v. Gopalaswami Naidu, : AIR1950Mad98 . But if the principal amount or a portion thereof be outstanding, as in this Case, the question arises whether such excess amount should be adjusted towards the principal or whether the creditor can claim the principal without giving creditto the amount in his hands representing the excess payment towards interest. In relation to this question, there appears to me to be no distinction in principle 'between a debt under 3. 8 and that under Section9 of the Act. In either case, the amount is an excess payment towards interest, and must be adjusted towards the principal if any part of it remains, especially as Section 7, expressly says:

'Notwithstanding any law, custom, contract or decree of Court to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provisions of this Chapter.'

Mr. Satyanarayana Raju, for the appellant, conceded that under Section 8, the excess interest remaining must be adjusted towards the principal amount remaining. That is undoubtedly so. A Bench of this Court, consisting of Wads-worth and Patanjali Sastri JJ. has held in Suryanarayanamurti v. Viramma : AIR1941Mad226 and in Anantharamakrishna Aiyar v. Sundaram Aiyar : (1940)2MLJ550 that appropriations towards interest made before 1-10-1937, one of the most crucial dates fixed by the Madras Agriculturists Belief Act, cannot be re-opened and re-adjusted under Section 8 (1), Madras Agriculturists Belief Act, but that appropriation made after 1-10-1937 can and must be re-opened and re-adjusted, first towards costs, then towards interest due from 1-10-1937,and next towards the principal amount due, and that even payments made between 1-10-1937, and 22-3-1938, when the Madras Agriculturists Belief Act came into operation, would be liable to be re-opened and re-adjusted like that, in view of the express terms of the Act, and that the word 'refund' in Section 8 (4), means only repayment in cash and is no bar to readjustment of the debt according to Section 8 (1) of the Act. They seem to have referred to the date 22-3-1938 simply because all the contested payments in these two cases were between 1-10-1937 and 22-3-1938. Mr. Satyanarayana Raju contended that the same Bench (Wads-worth and Patanjali Sastri JJ.) have held in Lakshmi Venkatayamma, v. Venkaatapathi Raju : AIR1941Mad382 , that if the payments made towards interest are in excess of the amount of interest as scaled down under Section9, that excess amount will be retained by the creditor and will not be adjusted in reduction of the principal, and that Horwill J. has held to the same effect in Mohamed Sahib v. Kuthammal Sowcar : AIR1940Mad807 . Indeed, it is those two rulings which have been responsible for this reference to the Full Bench, the question here being whether they have beenrightly decided. In my view, those cases have been wrongly decided. I see absolutely nothing to justify the difference sought to be made out between the provisions of Section8 and the provisions of Section9, regarding the re-adjustment of the excess interest paid. Horwill J, in Mohamed Sahib v. Kanthammal Sowcar : AIR1940Mad807 , tried to spell out a difference like this.

'Section 9 (1) deals entirely with the question of interest. It says that interest shall be calculated up to the date of the commencement of the Act at 5 per cent, simple interest, that credit should be given for the interest already paid, and that the amount outstanding for interest should be added to the principal outstanding, and the plaintiff should be given a decree for the amount so calculated. On 18-11-1935, the interest outstanding was paid off in full and the plaintiff has made no claim whatever for interest. As he is not bound to pay anything back, he cannot be given less than what he has claimed.'

In the Bench decision (delivered by Wads-worth J.) in Lakshmi Venkayamma v. Venkatapathi Raju : AIR1941Mad382 , the reason was given as follows :

'Section 9 (1) stipulates that interest shall be calculated up to the commencement of the Act at the contract rate or at 5 per cent, whichever is less, that credit shall be given for all sums paid towards interest and that only such amount as is found outstanding, if any, for interest thus calculated shall be deemed payable together with the principal amount or such portion of it as is due. It is contended for the plaintiff who is the petitioner that the whole of the process laid down in this portion of Section 9 is a process in reduction of the debt for interest ana that it does not contemplate any reduction of the amount due for principal. The process is firstly calculate the interest which would have been due at the rate of 5 per cent, then give credit for any payments actually made towards interest, then give a decree for interest on the basis of this calculation together with the amount due for principal. It is contended that if the scaling down process results in a smaller amount of interest than what has actually been paid as interest there is no provision in Section9 for carrying over this excess interest in reduction of principal. On the other hand, it is contended for the respondent that the words 'credit shall be given for all sums paid towards interest' must be read as if they were 'credit shall be given in reduction of the debt for all sums paid towards interest* and that the final words 'or such portion of it as is due' contemplate the reduction of principal by the process of carrying over the excess amount paid towards interest. It seems to us that the interpretation of the respondent involves not only the addition to the section of words which are not in it, but also entails the solution of an ambiguity by giving the benefit of the doubt to the exproprietor, which, as we have frequently held, is not permissible in interpreting an Act of this nature. The view for which the petitioner contends is in accordance with the plain language of the section. It is also the view adopted by Horwill J., in Muhammad Sahib v. Kanthammal : AIR1940Mad807 and we are of opinion that it is the correct; view. It results in the conclusion that if the payments made towards interest are in excess of the amount of interest' as scaled down, that excess amount will be retained by the creditor and will not be adjusted inreduction of principal; but there is nothing contrary to general principles in allowing a creditor to retain that which has been willingly paid to him.'

I am not convinced by the reasoning in either case. The decision in those cases would involve far more additions to and modifications in the wording of Section9 than applying the same principle regarding the readjustment of the excess interest to the principal would involve. Indeed, it is impossible to hold that Section9 deals only with interest as it begins with the phrase 'debts incurred on or after 1-10-1932, shall be scaled down in the manner mentioned hereunder' and 'debts' admittedly include both the principal and interest. Section. 9 (1) expressly says 'and credit should be given for all sums paid towards interest' thereby showing no intention of allowing the creditor to keep any excess interest on the ground of appropriation after 1-10-1937, and the clause

'nothing herein contained shall be deemed to require the creditor to refund any such Bum which has been paid to him'

occurs not in Section 9 (1) but in Section 9 (2), after the entire proceeds of the scaling of the debt is completed, just as it occurs in Section 8 (4) after the entire process of the scaling down of the debt is completed, and can therefore have reference only to the return of any excess paid to the creditor and remaining with him after the entire debt as scaled down by him has been discharged. It can have no reference to any re-adjustment towards a debt remaining after scaling down, as here. As already stated, it has been held by the same Bench which decided Lakshmi Venkayamma v. Venkatapathi Raju, : AIR1941Mad382 in Suryanarayanamurthi v. Viramma : AIR1941Mad226 and Anantharamakrishna Aiyar v. Sundara Aiyar : (1942)2MLJ550 that a re-adjustment of the excess interest would not amount to a refund by the creditor prohibited by Sections 8 (4) and 9 (2), Madras Agriculturists' Belief Act. I cannot agree with the argument that the agriculturist debtor in Section9 is an 'exproprietor' and so should not get the benefit, when the Madras Agriculturists' Belief Act itself ia intended to benefit him. I cannot also agree with the contention of Mr. Satya-narayana Baju, that, under Section9, the Legislature divides the debt incurred after 1-10-1932 into two compartments, namely, the principal and the interest, and applies the prohibition of the refund of the excess in either compartment. This contention is far-fetched and cannot be spelt out of the words of Section 9. As already stated the word 'refund' does not occur in Section 9 (1), Para, l, dealing with interest, but occurs in Section 9 (2) after Para. 2 of Section 9 (1) has given further instructions regarding the scaling down of the debt, thereby showing that the scope of Section 9 (2) is only regarding the refund of the excess remaining after the entire debt as scaled down is satisfied.

4. Mr. Satyanarayana Baju relied on the ruling in Ganapathi Subramania Iyer v. Gopalaswami Naidu, : AIR1950Mad98 , and on the general observations therein that the Court is entitled under Section 8 (4) and Section 9 (2) to retain any excess payments made to him. But those general observations must be read in the context of that case, and the points arising for decision there, and can only refer to the creditor's nonliability to refund any excess remaining with him after the entire debt as scaled down is satisfied.

5. In the end, therefore, I hold that Mohamed Sahib v. Kanthammal Sowcar : AIR1940Mad807 and Lakshmi Venkayamma v. Venkatapathi Raju 1940-1 M. L. J. 25 : (A. I. R.1941 Mad. 382) were wrongly decided. My answer to the points referred to us is as follows : (1) A creditor is not entitled to retain payments made after 1-10-1937 towards interest in excess of the interest payable under the provisions of the Act without adjusting them towards the principal; and (2) In regard to this matter, there is no distinction in principle between a debt to which the provisions of Section 8 apply and that governed by the provisions of Section 9,

Subba Rao, J.

6. I agree.

Balakrishna Ayyar, J.

7. I too agree.


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